Thoughts of an activist lawyer

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The country’s failure to protect and promote the right to life has taken center stage anew. On the eve of the third anniversary of the Ampatuan massacre, President Benigno Aquino III signed Administrative Order No. 35 creating a super-body headed by Justice Secretary Leila De Lima. The body would lead the effort to investigate and prosecute cases of extralegal killings and enforced disappearances in the country. The Secretaries of both the Departments of National Defense and Interior and Local Governments were likewise made members of this super body.

And then, there was the third anniversary of the massacre itself.

Unfortunately, the occasion did not warrant even a presidential remark other than a statement made by the President in a media summit that the government was looking into the cases of media killings. Then, late Tuesday, I received word from media contacts that the Court of Appeals had declared De Lima’s creation of the second DOJ panel to conduct a preliminary investigation into the Doc Gerry Ortega murder case null and void.

How are these three events connected?

Simply put, they explain why killings and enforced disappearances will continue in this country.

The creation of AO 35 was ill-advised. Already, we have at least three serious studies on what steps should be done to put an end to impunity. These are the Melo Commission Report, the Alston Report, and the Asia Foundation’s Parreno report. None of these recommended the creation of yet another body to deal with the killings. In fact, all these inquiries were issued when there was already some sort of super body in existence. President Gloria Macapagal Arroyo created Task Force Habagat in the Philippine National Police followed by Task Force 211, also an inter-agency body. The killings and the disappearances continued despite the existence of these bodies.

The Alston report then concluded that the Philippines is in breach of the duty to protect and promote the right to life because of a lack of political will to prosecute those behind these killings. It made special mention of the Office of the Ombudsman, which, despite its constitutional and legal mandate, has failed to investigate and prosecute even a single state agent for these killings and disappearances.

The Asia Foundation-funded Parreno report, in turn, concluded that the National Prosecution Service is largely to blame for the problem of impunity. To begin with, the NPS has a measly 1 percent conviction rate for cases of extralegal killings.

If at all, this last report has at least identified the weakest link in the fight against impunity: the Executive.

The reality, though, is that decisions such as the Court of Appeals’ nullification of Secretary De Lima’s creation of a second preliminary investigation that charged former Palawan Governor Joel Reyes and his brother for the murder of Doc Gerry Ortega highlight the Judiciary’s role in this culture of impunity.

While I have not seen this decision of the CA, it does highlight why a super body within the executive branch of government alone is not the solution to impunity. While the Parreno report did not identify the Judiciary as the weakest link, it has noted that institutional weaknesses within the Judiciary itself, including notorious delays and perception of corruption, also afflicts the system.

But where does the Ampatuan massacre come in?

It serves as the case study on what happens when there is institutional breakdown of the country’s criminal justice system. The fact remains that while Judge Jocelyn Solis-Reyes and all the lawyers connected with the case, both prosecution and defense, are doing the best that they could to afford justice to both the victims and the accused, it is the system itself that is responsible for failure to accord the parties to the case an adequate remedy under domestic law.

First, the Philippine National Police did not investigate the massacre in a manner that would result in conviction. This much the authorities have admitted, saying that many of their men failed to execute the requisite affidavits of seizures and arrests for fear of retaliation. In like manner, the police have also failed to apprehend about half of the 194 accused charged in the case. The National Prosecution Service, for its part, did not coordinate with the PNP in conducting the investigation of the case to ensure that evidence gathered will stand in court. This was one of the conclusions made by the EP-Just program of the EU: that prosecutors should work hand in hand with the PNP to ensure that the evidence gathered by the police would result in convictions. Then there is the Court that to begin with, is not equipped with rules to handle this many accused for no less than 58 counts of murder.

Yes, the super body created by AO 35 is good copy. Unfortunately, it is a band aid to the “gangrenous” wounds that afflict the pillars of the country’s criminal justice system. In the end, with government offering yet another super body to address impunity, the citizenry is left only with prayers as their ultimate tool against impunity. Let’s pray very hard.